May 1st, 2012
Personal injury claimants in British Columbia should be aware of how the Courts deal with photos and videos kept at their Facebook accounts. As a personal injury lawyer in Vancouver since 1995 I have had to address privacy concerns for my personal injury clients in almost every case. With the evolution of social media, insurance companies know more than ever about injury claimant’s personal life and will often get photos and even videos of the claimant before they have a chance to change their privacy settings.
There are currently very few court cases dealing with Facebook in the context of personal injury claims in British Columbia. I did recently review a case in which the court refused to order disclosure of a claimants Facebook account information. However, in the case Fric v. Gershman, 2012 BCSC 614, the Court came to the opposite conclusion.
In the Fric case the litigant was claiming for damages resulting from injuries suffered in a motor vehicle accident in British Columbia. At the time of the accident, the claimant was a first year law student at the University of Victoria. The claimant’s vehicle was rear-ended which caused her injuries including chronic severe headaches, injury and pain to the upper back, and neck pain. After the accident, despite her injury, the claimant engaged in various activities including trips to Thailand, Fiji, Australia, Montana, Florida, California, Seattle, Portland, and Cuba.
The claimant had some 890 Facebook “friends” who did have access to the private content of the Facebook profile. The Facebook network was used by the claimant for both personal and professional interactions. Her Facebook profile stored 759 digital photographs and one video and the claimant did not disclose the precise nature or subject matter of the Facebook photographs or video. In addition, the claimant was in possession of approximately 12,000 photographs. It was not clear on the evidence whether those photographs were stored electronically or in an old-fashioned album.
Despite her injury the claimant continued to engage in sports and other physical activities since the accident, including hiking, scuba diving and wakeboarding albeit with some pain or discomfort.
After considering many case authorities, the Court concluded that some of the claimant’s photographs, including those held on the private Facebook profile, must be disclosed. In making the order Master Bouck stated, Read the rest of this entry »
Tags: Car Accident Claim, Document Discovery, Facebook disclosure, ICBC, ICBC Injury claim, New Civil Court Rules
Posted in Back Pain, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No Comments »
April 18th, 2012
In this Fast Track car accident injury case (Bissonnette v. Horn, 2012 BCSC 518) the injury claimant was a passenger in a vehicle driving southbound on 203rd Street, near Michaud Crescent, in Langley, B.C. Another vehicle, also traveling southbound on 203rd Street, cut off the claimant vehicle causing it to lose control, which then came in contact with a utility pole.
The main issues at trial were the extent of the claimant’s pain, what injuries were caused by the accident, and the proper measure of her compensation. ICBC argued that the complaints of left hip pain did not arise until years after the car accident and were not caused by the accident. ICBC relied on the evidence of Dr. Grypma.
The court accepted the injury claim despite the defence awarding $109,500 in damages consisting of the following:
a) Pain and suffering of $40,000;
b) $37,500 for past lost income;
c) $30,000 for lost future earning capacity;
d) $500 for out of pocket expenses, and
e) $1,500 for the cost of future care.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness
Tags: Accident Insurance Claim, Back Pain, Car Accident Claim, ICBC, ICBC Injury claim, Insurance Claim, Legal Causation, New Civil Court Rules, Pain and Suffering, Personal Injury, Whiplash Claims
Posted in ICBC Car Accident, ICBC Insurance Claims, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | 1 Comment »
March 26th, 2012
The injury claimant was injured when the car she was driving was rear-ended by another vehicle(Fell v. Morton,2012 BCSC 428). Fault for the accident was admitted but causation and quantum remained in dispute likely by the insurer ICBC , given that the car accident occurred in British Columbia. The questions were whether the back and neck pain and migraine headaches were pre-existing problems that were just aggravated shortly by the accident; and whether the claimant suffered loss of earning capacity due to her injuries.
At the time of the car accident injury the claimant was self-employed in the film industry as a first aid service provider which involved being on location during filming to provide first aid and to provide snacks and light meals for actors, directors, and the film crew. Following the accident, she continued to work until taking her maternity leave. Note that when you continue working after a car accident you are not typically entitled to ICBC disability benefits.
In this oral decision the judge in awarding over $100,000 commented,
In summary, the injuries from the accident have affected all areas of [the injury claimant's] Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre‑existing condition and proclivity to develop migraine headaches.(para 39)
The total compensation awarded to this injury claimant was as follows:
| |
Pain and suffering: |
$65,000 |
|
| |
Out of pocket expenses: |
$4,175 |
|
| |
Cost of future care: |
$2,500 |
|
| |
Past wage loss: |
$0 |
|
| |
Loss of earning capacity: |
$50,000 |
|
| |
TOTAL: |
$121,675 |
Check out my other posts about pregnant injury claimants. Posted by car accident injury lawyer Mr. Renn A. Holness
Tags: Car Accident Claim, Car accident lawyer, ICBC, ICBC Injury claim, ICBC Lawyers, Legal Causation, Loss of Income, Neck Pain, Pain and Suffering, Personal Injury, Personal Injury lawyer, Prior Condition
Posted in Back Pain, Car Accident Lawyer, How Much Money Will I Get?, ICBC Car Accident, Limb Injury, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No Comments »
March 12th, 2012
This car accident injury case was sent back for a new trial because the Court of Appeal found that the trial judge was wrong in reducing the injury claimants award for failure to following medical advice (Wahl v. Sidhu, 2012 BCCA 111). I reviewed the original decision in which the injury claimant was travelling on 72nd Avenue, in Surrey, B.C. and my article focused on the judges reluctance to compensate for personal injury lawyer funded treatment. Clearly the trial decision was wrong and cannot be relied upon.
The BC Court of Appeal rightly pointed out that the judge’s reasons confuse the issues of causation and mitigation. As stated in Yoshikawa, “any question of mitigation, or failure to mitigate, arises only after causation has been established” (para. 12, subparagraph7). Read the rest of this entry »
Tags: Accident Insurance Claim, Back Pain, British Columbia Lawyers, ICBC, ICBC Injury claim, Legal Causation, Mitigation, Negligence
Posted in Back Pain, British Columbia Lawyers, Car Accident Lawyer, ICBC Car Accident, ICBC Insurance Claims, ICBC Truck Accident, Motor Vehicle Accidents, Personal Injury Lawyers BC, Soft Tissue Injury, Vancouver Personal Injury Lawyer, Whiplash Claims | 1 Comment »
January 3rd, 2012
In this ICBC Langley personal injury claim (Shinkaruk v. Crouch,2011 BCSC 1762) a pickup truck collided with the claimant’s car in the intersection of 96th Avenue and Telegraph Trail. The weather was clear, visibility was good and the streets were bare. The claimant’s evidence was that he pulled up to the sidewalk and looked to his left and there was only one vehicle approaching from that direction, the pickup truck that was was two or three blocks back.
The claimant had a green light and began to move into the intersection but the the pick-up truck sped through a red light hitting the claimant’s car. The judge found the most probable explanation for what happened is that the claimant did not bother checking again because his light was green but if he had taken the time to look, the defendant’s pickup truck would have been perceived by him as a hazard. As stated by the Judge, “ However, the greater negligence, I find, rests with the defendant, who entered the intersection on a red light and who was speeding. The evidence also suggests that his rear brakes were not properly functioning. I assess the defendant’s liability at 80%.”
The injury claimant was a 48 year old ironworker with a significant history of low back pain, including absences from work. Eight months following the car accident the injury claimant’s family doctor assessed the claimant for the Insurance Corporation of British Columbia, ICBC. His orthopedic and neurological examination of the claiman’s lower back was normal and unremarkable. There was palpatory tenderness only across the thoracic spine, none across the lumbar spine and the claimant’s complaints were noted as “occasional low back pain”.
The judge awarded the injury claimant a total of $66,558.96 broken down as follows:
Pain and suffering: $45,000.00
Net Past Income Loss: $20,522.95
Out-of-pocket expenses: $ 1,036.01
Posted by personal injury lawyer Mr. Renn A. Holness, B.A. LL.B. member of the Trial Lawyers Association of British Columbia
Tags: Accident Insurance Claim, At Fault, Back Pain, Car Accident Claim, Chronic Pain, ICBC, ICBC Medical Examination, Medical Examination, Pain and Suffering, Personal Injury, Prior Condition
Posted in Back Pain, How Much Money Will I Get?, ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia, Motor Vehicle Accidents, Soft Tissue Injury, Whiplash Claims | No Comments »
December 20th, 2011
The claimant was injured in a car accident in Kamloops, B.C. (Power v. Carswell, 2011 BCSC 1672) which occurred in the intersection of Lansdowne St. and 3rd Avenue, which is controlled by traffic signals. The claimant was driving a Pontiac Sunfire going straight when she struck a Jeep turning left. Both fault for the accident and the quantum of damages were in issue in this personal injury case.
At the time of the accident the claimant was 28 years old and working as an instructor at a hairdressing school and she claimed that as a result of these injuries, she is no longer able to work as a hair stylist or instructor, and must retrain. She also claimed that she has a reduced ability to look after herself and her family.
The primary issue regarding compensation was the extent to which the claimant’s work and activities would have been restricted even if the accident had not occurred. The ICBC lawyer argued that the claimant would have suffered restrictions because of her injuries in a previous car accident, her large weight, and because of the physical strain of working as a hairdresser. The defence also argued that the claim for future lost earning capacity was exaggerated.
The personal injury lawyer for the claimant argued that the proper award would be about $390,000, consisting of $100,000 for pain and suffering, $31,573 for past lost income, $201,651.40 for retraining and lost future earning capacity, $55,292.05 for the cost of future care, and $406.69 for special damages.
ICBC, for the defendant, argued that the proper award would be about a total of $60,000, consisting of $50,000 for pain and suffering, $501 for past lost income, $25,000 for lost future earning capacity, and $5,000 for cost of future care, all reduced by 25% for failure to mitigate.
In awarding $221,000 Judge Gray stated, Read the rest of this entry »
Tags: Accident Insurance Claim, At Fault, Back Pain, British Columbia Lawyers, Car accident lawyer, Chronic Pain, ICBC Lawyers, Insurance Claim, Lawyer Vancouver, Loss of Income, Personal Injury Lawyers, Whiplash Claims
Posted in Back Pain, British Columbia Lawyers, Car Accident Lawyer, Hiring a Personal Injury Lawyer, ICBC Car Accident, ICBC Insurance Claims, ICBC Lawyers, ICBC Motorcycle Accident, Injury Attorneys, Motor Vehicle Accidents, Personal Injury Lawyers BC, Vancouver Personal Injury Lawyer, Whiplash Claims | No Comments »
December 14th, 2011
This case is another reminder of why it is important to hire a personal injury lawyer if you have been injured in a car accident( see: Pearlman v. Phelps Leasing Ltd.,2011 BCSC 1696).
The Judge had a difficult time accepting the testimony of the claimant stating, “The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. ”
The claimant was a 77-year-old retired lawyer who represented himself on a claim for injuries suffered in a motor vehicle accident. The other driver admitted liability, but stated that the collision was minor in nature and any symptoms of which the claimant complains existed before the accident in question. The claimant was involved in two other car accidents one before and one after the accident in question therefore the issue was primarily one of causation.
Read the rest of this entry »
Tags: Accident Insurance Claim, British Columbia Lawyers, Car Accident Claim, Car accident lawyer, Find Lawyers, ICBC Lawyers, Lawyer Vancouver, Lawyers in BC, Legal Causation, Personal Injury lawyer, Personal Injury Lawyers, Prior Condition
Posted in Back Pain, British Columbia Lawyers, Car Accident Lawyer, Hiring a Personal Injury Lawyer, How Much Money Will I Get?, ICBC Car Accident, ICBC Lawyers, Injury Attorneys, Legal Advice, Motor Vehicle Accidents, Neck Pain, Personal Injury Lawyers BC, Soft Tissue Injury, Vancouver Personal Injury Lawyer, Whiplash Claims | No Comments »
December 1st, 2011
This personal injury summary trial,(Parmar v. Lahay, 2011 BCSC 1628) pursuant to Rule 9‑7 of the Supreme Court Civil Rules, involved a motor vehicle accident that occurred one year before the hearing. There was no claim for loss of wages or any future loss of capacity and the only question was how much compensation should be awarded for pain and suffering.
In evidence were two opinions from the family doctor of the claimant. What was recommended was physiotherapy treatment. Six of those sessions were undertaken. The Judge awarded $12,500.00 for pain and suffering taking into account that the claimant continued to suffer neck and shoulder pain 13 months after the accident. The cases quoted by the claimant were between $10,000 and $15,000.
Despite the fact this claim was within the Small Claims Court Jurisdiction the Judge still awarded a contribution toward the claimant’s legal fee. The Court took judicial notice that the case reached the Court for decision much more quickly than if it had been commenced in Small Claims Court. The Court also took judicial notice of the absence of a considerable number of judges at the Provincial Court level (Small Claims Court) and the backlog in hearing matters that the failure to appoint more judges had produced. The Judge stated the law in this way, Read the rest of this entry »
Tags: Accident Insurance Claim, Car Accident Claim, Costs, Neck Pain, New Civil Court Rules, Pain and Suffering, Personal Injury, summary trial, Whiplash Claims
Posted in ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No Comments »
November 29th, 2011
ICBC must pay for doctor required massage
The Insurance Corporation of British Columbia, ICBC, refused to accept the decision of a BC Supreme Court Judge and had to be told the obvious by the Court of Appeal of BC-Massage therapy after a car accident injury is a mandatory ICBC benefit (Raguin v. Insurance Corporation of British Columbia, 2011 BCCA 482).
The infant claimants were in a motor vehicle accident and each suffered soft tissue injuries. At the time of the accident the kids wer eleven years old and twelve. They were treated by their family physician and their doctor recommended that each receive massage therapy treatment. The treatments were provided by a registered massage therapist at a total cost of $742.00.
ICBC took the position that the cost of massage therapy is not covered under s. 88(1) of the Regulation and refused to pay for the treatments. Cross applications were subsequently brought by the litigants in the Part 7 benefit lawsuits. ICBC applied unsuccessfully to dismiss the lawsuits on the basis that expenses incurred for massage therapy treatments were not covered under s. 88(1). The applications brought on behalf of the infant injury claimants for orders for payment of the massage therapy expenses were allowed by the trial judge.
As a personal injury lawyer representing injury claimants against ICBC since 1995 I have always taken the position that, if doctor recommended, ICBC is required to pay for massage therapy, and ICBC has paid for this therapy many times in the past. ICBC has helped injury claimants in this case by asking the Court of Appeal to put to rest any question over whether ICBC must pay for massage therapy. ICBC must pay for massage therapy after a car accident and as the Court of Appeal stated in this personal injury case,starting at paragraph 56, very clearly, Read the rest of this entry »
Tags: Accident Insurance Claim, Car Accident Claim, ICBC, ICBC Injury claim, Insurance Claim, Personal Injury
Posted in How Much Money Will I Get?, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Settlements, ICBC Truck Accident, Insurance Claim in British Columbia, Legal Advice, Motor Vehicle Accidents, Personal Injury Lawyers BC, Soft Tissue Injury, Whiplash Claims | 1 Comment »
